Social Media Prosecutions: ‘Grossly Offensive’ to some

A nineteen-year old was arrested for posting an aggressive status update to his Facebook account in March 2012. Matt Bradley writes a clear timeline of the Azhar Ahmed case and compares it to other cases of social media prosecutions.

On Thursday 20th September the Director of Public Prosecutions, Keir Starmer issued a statement on the subject of social media prosecutions. His comments were in reference to a specific case of a CPS decision not to prosecute Daniel Thomas for a homophobic tweet about Tom Daley and his fellow diver Peter Waterfield:

“There is no doubt that the message posted by Mr Thomas was offensive and would be regarded as such by reasonable members of society. But the question for the CPS is not whether it was offensive, but whether it was so grossly offensive that criminal charges should be brought. The distinction is an important one and not easily made.”

Starmer explained that the decision to not prosecute had been taken in light of a number of factors including:

“However naïve, Mr Thomas did not intend the message to go beyond his followers, who were mainly friends and family”

Starmer’s statement continued with more generalised remarks about freedom of speech online, expressing a desire for a debate about the limits of that freedom and that

“the CPS has the task of balancing the fundamental right of free speech and the need to prosecute wrongdoing” adding that in his view,

“the time has come for an informed debate about the boundaries of free speech in an age of social media.”

Right now there is one specific social media prosecution which fills me with a creeping dread. This is a case which I have been following with mounting dismay ever since I first became aware of the arrest in March this year.

Nineteen-year old Azhar Ahmed of West Yorkshire was arrested on 10th March 2012 after posting the following status update to his Facebook account from his mobile phone:

“People gassin about the deaths of Soldiers! What about the innocent familys who have been brutally killed.. The women who have.been raped.. The children who have been sliced up..! Your enemy’s were the Taliban not innocent harmful familys. All soldiers should DIE & go to HELL! THE LOWLIFE FOKKIN SCUM! gotta problem go cry at your soldiers grave & wish him hell because thats where he is going..”

Ahmed has posted the update at around 7pm on the 8th March after seeing updates on his Facebook timeline expressing condolences for six British Soldiers who had been killed in Afghanistan on the 6th. It was the biggest single loss of the life sustained by British forces since the conflict in Afghanistan started, and was very public news at the time.

To paraphrase the words of DPP Keir Starmer, there is no doubt that the message posted by Mr Ahmed was offensive, but what happened next is really quite terrifying.

Azhar Ahmed’s Facebook status was picked up by various people, who began passing around online either in the form of Facebook shares or screengrabs. A large number of negative comments appeared in reply to Ahmed’s status update. Eventually, Ahmed deleted his post, and even sent a few direct messages of apology to people who had expressed upset.

By about 10pm the same night, an address and telephone number which purported to be that of Ahmed had been posted online. It was in fact the address and telephone number of a friend of his. The telephone number in question began receiving abusive and racist telephone calls until the early hours of the morning. At approximately midnight, cars began pulling up outside the house, and torches were shone in through the windows.

The following morning, at 9am, the company which Ahmed had listed as his employer in his Facebook profile began receiving telephone calls accusing them of being a “racist company”.

By the time Ahmed agreed to meet with West Yorkshire police 2 days after his post, he must have been seriously rattled. He had been threatened and abused online and there had been attempts to get to him at his home address. During his meeting with police Ahmed was arrested and subsequently charged with “racially aggravated public order offence”.

Skip forward to March 20th and Ahmed’s first case hearing at Dewsbury Magistrate’s Court. Even a cursory search online would reveal that the case was already the subject of much attention from the right wing press, far right and nationalist groups. Police were expecting trouble. When I arrived at court that day there was a substantial police presence.

During that first hearing, we heard that the CPS has elected to drop their prosecution for a “racially aggravated public order offence”, and instead charge Ahmed with sending a “grossly offensive” message via a public telecommunications network contrary to Section 127 of the Communications Act 2003. I’m sorry to report that this didn’t come as great surprise to me; there was little prospect of CPS securing a conviction under the previous charge. Section 127, on the other hand, is open to a very wide interpretation in that it applies highly subjective terms such as “grossly offensive” and “indecent”. It has in the past proved to be a very effective way of securing a conviction against social media users.

Leaving court, I was dragged painfully out of my internal contemplation of the legal abstract and back into the savage realities of what has brought this case to court. Since the hearing began a sizeable mob of nationalists and far right activists had gathered outside the courthouse. The scene was ugly. There was an undeniable threat of violence and police were struggling to contain it. Within 15 minutes of the hearing finishing, the mob had split into numerous small groups running the narrow side streets of Dewsbury with hoodies and scarves wrapped around their faces. What began as the angry political outburst of a young British Asian Muslim had now ballooned some weeks later into a near riot.

The full trial took place the 14th September at Huddersfield Magistrate’s Court, in front of a public gallery filled almost entirely with far right supporters. Throughout the case there has been no dispute that Ahmed posted the status which he posted. In legal parlance, the “actus reus” of Ahmed making the post is accepted. What was in discussion was the “mens rea”: did he post his status with the intention, or the reasonable expectation that it would be found “grossly offensive” to those who saw it?

After a six hour hearing, the sitting District Judge Jane Goodwin found Azhar Ahmed guilty under s127 of the Communications Act 2003. Whilst acknowledging Ahmed’s right to freedom of expression, she said that he must have been aware of the soldiers who had died in the Afghanistan on 6th March, and that she was therefore satisfied that he intended his Facebook status to be “grossly offensive” to those who read it.

A sentencing hearing for Azhar Ahmed will take place in October and I would be well advised not to speculate on the outcome of that hearing. From my point of view, whether Ahmed receives the full maximum 6 months’ imprisonment which his conviction allows, or a fine of only £1, it will be too much. This young man (now 20 years old) will be given a criminal conviction for expressing an unwelcome political opinion. This to my mind is completely intolerable in a free and just society.

I’m criminally over my word limit here, but I’d like to leave you with one more thing. After a hard fought campaign going all the way to the High Court in front of the Lord Chief Justice himself, Paul Chambers successfully had his conviction under s127 overturned. In his judgment, the Lord Chief Justice said of the Communications Act 2003

“The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation.”

Matt Bradley has been working on the Internet for ten years and is director of Invent Partners Ltd (http://www.inventpartners.com), a website and software development firm. He also writes a blog on social media prosecutions and internet freedom of speech at http://www.pitkanary.com

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Good article. I just wanted to say that an actus reus is an act that is caught by the offence, so the mere posting of a Facebook update is not an actus reus unless that update is of a character that s127 seeks to ban. You have said that the trial focused mainly on intent, which is a shame. I believe that the actus reus is not made out within the context of the Facebook update. This is in part because one can argue persuasively that Azhar Ahmed would not have expected the bereaved families of dead soldiers to see his remarks in the space where he made them. You could say this goes to mens rea, but really it is part of the context and therefore plays straight into actus reus, since the update was not found to be grossly offensive on an objective reading.

There is nothing criminally wrong with what Ahmed wrote and the manner in which he delivered it. He would have had to know that the update was particularly offensive to one or more readers in order for "grossly offensive" to be made out. In other words, he would have to have known that certain of his readers were particularly sensitive or expected his update to be picked up and disseminated far and wide. He has denied this and I believe him. The actions of others are to blame for the gross offence, if such a reaction occurred. This is not something for which Ahmed can be blamed.

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